Burger v. Burger

862 So. 2d 828, 2003 WL 22900218
CourtDistrict Court of Appeal of Florida
DecidedDecember 10, 2003
Docket2D02-4944
StatusPublished
Cited by6 cases

This text of 862 So. 2d 828 (Burger v. Burger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burger v. Burger, 862 So. 2d 828, 2003 WL 22900218 (Fla. Ct. App. 2003).

Opinion

862 So.2d 828 (2003)

Cheri Marie BURGER, n/k/a Cheri Marie Pedigo, Appellant,
v.
Joshua Caleb BURGER, Appellee.

No. 2D02-4944.

District Court of Appeal of Florida, Second District.

December 10, 2003.
Rehearing Denied January 30, 2004.

*829 Raymond J. Rafool, II, of Rafool & Rafool, P.A., Winter Haven, for Appellant.

William C. Hamm, Jr., Lakeland, for Appellee.

VILLANTI, Judge.

Cheri Marie Pedigo (the Mother) challenges the trial court's order transferring primary residential custody of her eight-year-old son to Joshua Caleb Burger (the Father). Because the Father failed to meet the "extraordinary burden" test for child custody modification set forth in Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1996), we reverse.

Shortly after the parties married on June 14, 1996, in Lakeland, Florida, they moved to Colorado where they briefly lived as husband and wife. Their son was born on October 10, 1996, and soon after his birth, the Mother and son returned to Lakeland, where both parties have extended family. The Mother and son moved in with the maternal grandmother, where they continued to reside, on and off, until the final order modifying custody was entered.

On March 31, 2000, the court entered its final judgment of dissolution of marriage, which designated the Mother as the primary residential parent and granted the Father reasonable and liberal visitation. The court also ordered the Father to pay $616 per month in child support. On May 7, 2001, the Father petitioned the court for a modification in child support based on a substantial decrease in his income. Before the court entered an order on this modification petition and following an impasse in mediation, the Father petitioned for modification of child custody on June 26, 2001. He also requested emergency relief to temporarily remove the son from the Mother's care.

As grounds for the petition for modification of custody and the emergency motion for temporary relief, the Father alleged, inter alia, that the Mother had failed to maintain a stable living environment by leaving the son with the maternal grandmother for "days on end" and by allowing the son to move from residence to residence; that the Mother had checked herself into a drug rehabilitation program for an ongoing drug abuse problem but left before completing the program; and that the Mother had been the victim of domestic violence in front of the son. Finally, he alleged the Mother's whereabouts were unknown at the time he submitted his petition because she had recently left the son at the maternal grandmother's home and disappeared. He submitted that all of these circumstances amounted to a substantial change in circumstances that resulted in detriment to the son and that it would be in the son's best interests to reside with the Father, who could provide a stable living environment because of his military career and remarriage.

After a hearing on the emergency motion at which both parties were present, the court entered a temporary order on July 10, 2001, denying the Father's requested relief but awarding temporary custody of the son to the maternal grandmother, who was not a party but who was present and agreed to this arrangement.[1]*830 In its order, the court found that the son had resided with the maternal grandmother for the last three-and-one-half years in a stable environment in which he was well cared for. Notably, the court specifically determined that in fact no emergency existed as to the care and custody of the son. Nevertheless, apparently in view of the Mother's ongoing drug problem, the court ordered that the Mother was allowed only supervised visitation.

On May 17, 2002, the Mother moved to be allowed unsupervised visitation with the son. Her motion alleged that she had completed counseling and had established a stable living environment. At the hearing on this motion, the maternal grandmother testified that she was certain the Mother had stopped using drugs. On the court's recommendation, the Mother submitted to a drug test that same day after the hearing concluded. When the test revealed the presence of amphetamines, the court denied the Mother's motion for unsupervised visitation.

The hearing on the Father's petition to modify custody was held on September 24, 2002. At this hearing, the testimony revealed that the Mother, the son, and the Mother's daughter from a different relationship all resided with the maternal grandmother.[2] The Mother testified about her extensive involvement in the son's school, where he was continuing to excel academically. She also testified that the son enjoyed a close relationship with his half-sister and described the activities she and the children enjoyed together as a family, such as playing in the yard together, reading stories together, and going on outings to family restaurants. In contrast, the Father's visitation was limited by geography and the terms of the final judgment of dissolution of marriage, which allowed visitation on major holidays during alternating years and for six weeks during the summer.

The Mother also testified that at the time of the hearing, she was receiving treatment for methamphetamine abuse. In addition to completing treatment, she was working part time as a waitress while also a full-time student pursuing a degree in radiology. Two counselors from the Mother's treatment program testified that she was "an inspiration" in her progress toward full success and that she was totally committed to a complete recovery. They also indicated that since the Mother began treatment, she had passed every random urinalysis. The counselors thus maintained that the Mother's prognosis for recovery was good as long as she continued *831 in the program, which the Mother indicated she planned to do.

The Mother's success with drug treatment was further supported by the maternal grandmother's testimony. On cross-examination, however, counsel for the Father impeached the maternal grandmother based on her similar testimony at the May 17, 2002, hearing, after which the Mother tested positive for amphetamines. Thus, the trial court treated the maternal grandmother's testimony with skepticism.

Regarding the allegations of domestic violence, the maternal grandmother testified to three such incidents. The maternal grandmother actually observed only one incident, which was a fight between the Mother and the Mother's sister in 1997 that resulted in the maternal grandmother physically removing the Mother from the house. The other two incidents did not take place in front of the maternal grandmother, and thus she testified based on hearsay reports from the Mother and the Mother's sister. One incident involved a male spitting in the Mother's face and perhaps slapping her; in the other, the Mother was attacked. Contrary to the Father's allegations, none of these incidents occurred in front of the son. No evidence was presented regarding any of the Father's other assertions in his modification petition.

At the conclusion of the hearing, the trial court granted the Father's petition for modification of custody. As grounds for its ruling, the court made the following findings germane to our analysis:

6. That the mother has had financial instability. That the mother is not financially capable of caring for herself and her children at this time. That the mother constantly changes residences. That the mother has had a second child out of wedlock. However, these factors are insufficient in and of themselves.

7.

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Bluebook (online)
862 So. 2d 828, 2003 WL 22900218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burger-v-burger-fladistctapp-2003.